Nebraska Law Review
Volume 44 | Issue 3
Article 8
1965
Labor Law—May a Union Bargain Away an
Employee's Right of Free Speech?—NLRB v. Gale
Prods., 337 F.2d 390 (7th Cir. 1964)
Donald H. Bowman
University of Nebraska College of Law, [email protected]
Follow this and additional works at: http://digitalcommons.unl.edu/nlr
Recommended Citation
Donald H. Bowman, Labor Law—May a Union Bargain Away an Employee's Right of Free Speech?—NLRB v. Gale Prods., 337 F.2d 390
(7th Cir. 1964), 44 Neb. L. Rev. 645 (1965)
Available at: http://digitalcommons.unl.edu/nlr/vol44/iss3/8
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CASENOTES
LABOR LAW-MAY A UNION BARGAIN AWAY AN EMPLOYEE'S RIGHT
OF FREE SPEECH?-NLRB v. Gale Prods., 337 F.2d 390 (7th Cir. 1964).
Gale Products employs about 1,350 industrial workers, who
are represented by Marine Motor Lodge No. 1659, International
Association of Machinists, AFL-CIO (referred to herein as LAM).
The 1962-64 collective bargaining agreement between the company
and 1AM contained the following provisions:
There shall be no other general distribution or posting by employees of pamphlets, advertising or political matter, notices, or
any kind of literature upon Company property, other than as herein provided.
No employee is authorized or will be permitted to solicit membership for Insurance Companies, Fraternal, Social or other organizations, or to carry on within the Plant any outside business involving patronage on the part of the Employees. Violation of this
rule will result in discharge.1
A group of dissident employees, attempting to form an independent union, requested and was denied permission to distribute
literature at the company's gates and in its parking lot. Later,
these same employees distributed membership cards to employees
on the company's premises. This was done on their own time and
in nonwork areas. These employees were given "final warning
notices" stating that such distribution constituted a contract violation and that further infractions would be considered cause for
dismissal.
The National Labor Relations Board found that the company
2
had violated section 8 (a) (1) of the National Labor Relations Act,
and ordered it to cease and desist from enforcing the contract
provisions and to expunge from the record the final warning notices issued to the employees for violation of the contract prohibitions. 3 The Seventh Circuit Court of Appeals, in denying enforcement of the Board's order, 4 based its decision on the "rationale" of May Dep't Stores Co. that
the employees embraced by these contracts, on the assumption
1 NLRB v. Gale Prods., 337 F.2d 390, 391 (7th Cir. 1964).
[After the
setting of this article in page proofs, two cases have been decided by
the Sixth Circuit on this same point. They follow the Gale holding.
Armco Steel Corp. v. NLRB, 59 L.R.R.M., Lab. Arb. 2077 (6th Cir.
April 27, 1965); General Motors Corp. v. NLRB, 59 L.R.R.M., Lab.
Arb. 2080 (6th Cir. April 27, 1965).]
2 61 Stat. 140 (1947), 29 U.S.C. § 158(a) (1) (1958). The pertinent language provides: "It shall be an unfair labor practice for an employer
-(1) to interfere with, restrain, or coerce employees in the exercise
of the rights guaranteed in section 7 of this title. . . 2" Section 7 provides that employees shall have the right of self-organization.
3 NLRB v. Gale Prods., 337 F.2d 390 (7th Cir. 1964).
4 Gale Prods., 142 N.L.R.B. 1246 (1963).
NEBRASKA LAW REVIEW-VOL. 44, No. 3
that the latter were entered into by organizations which represented a majority of the employees in an appropriate unit, have
thereby effectively bargained away their right to engage in union
solicitation on the respondent's premises.5
The decision in Gale is of great importance in the context of
the larger problem of protecting personal freedom in an industrial
society." The court limited its inquiry to a determination of
whether the employer had committed an unfair labor practice under the National Labor Relations Act 7 and failed to deal with the
more fundamental problem involved, namely, whether the union
possessed power to bargain away an employee's constitutionally
guaranteed right of free speech."
5 59 N.L.R.B. 976, 981 n.17 (1944). (Emphasis added.) As pointed out
by Judge Kiley in his dissenting opinion in Gale, the footnote in May
should not be sufficient grounds for reversing the Board without at
least an examination of the problem involved.
Moreover, the Board in May considered the effect of contractual
waivers upon solicitation engaged in by employees on behalf of the
incumbent union, whereas the solicitation and distribution of union
cards by employees in Gale was an expression of dissatisfaction with
the incumbent union. The legal consequences of the two acts may be
different, since the "Bill of Rights of Labor" contained in the Labor
Management Reporting and Disclosure Act, 73 Stat. 522 (1959), 29
U.S.C. § 411 (a) (2) (Supp. IV 1959), provides: "Every member of
any labor organization shall have the right to meet and assemble
freely with other members; and to express any views, arguments, or
opinions ... ." The speech protected by this section is broader even
than that protected by the Constitution, in that constitutionally protected speech does not include libelous utterances, while this section
does. Salzhandler v. Caputo, 316 F.2d 445 (2d Cir. 1963). While this
section of the act applies only to union members, any discussion of a
union depriving an employee of his right of free speech must take it
into account.
6 Compare Goldwater, The Union Member as a Person, 40 U. DET. L.J.
179 (1962), with Wirtz, Government by Private Groups, 13 LA. L. REv.
440 (1953). See also Blumrosen, Employee Rights, Collective Bargaining, and Our Future Labor Problem, 15 LAB. L.J. 15 (1964); Comment,
73 YALE.L.J. 1215 (1964).
7 The court concluded that the prohibitions involved were not unilaterally imposed by the company. For an excellent and up-to-date
discussion of this area of employer unfair labor practices, see Vanderheyden, Employee Solicitation and Distribution-A Second Look, 14
LAB. L.J. 781 (1963).
8 The court merely stated, without examining or discussing the point,
that the prohibitions in the contract were "the fruits of collective bargaining agreed to by the employees involved." NLRB v. Gale Prods.,
337 F.2d 390, 391 (7th Cir. 1964). The "fruits" concept implies a give
and take between the negotiating parties. It is questionable whether
this applies in Gale, since the interests of both the employer and the
union were at variance with the interests of the employees.
CASENOTES
The fundamental question raised, given these premises, is
whether the nature of the collective bargaining system requires
that certain restrictions be placed on an employee's right to express himself as an individual. No one would argue that management acting alone could impose such restrictions on an employee. Thus, the question is whether the insertion of a union
between management and employee makes a difference. In short,
may a union contract away the right of member employees to
freedom of speech?
The right of employees to organize for collective bargaining
and to select representatives of their own choosing is clearly
recognized as a fundamental right,9 and the right to hold views
upon any and all controversial questions, to express such views,
and to disseminate them to interested persons has also been recognized to be fundamental.1 0 Indeed, the Supreme Court of the
United States has held that the right of union solicitation is a
9 As stated in NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 33
(1937): "That is a fundamental right. Employees have as clear a
right to organize and select their representatives for lawful purposes
as the respondent has to organize its business and select its own officers and agents." See also Amalgamated Util. Workers v. Edison Co.,
309 U.S. 261 (1940); United States v. Moore, 129 Fed. 630 (C.C.N.D.
Ala. 1904); Pittman v. Nix, 152 Fla. 378, 11 So. 2d 791 (1943).
10 The right of employees to form opinions is of little value if such
opinions may not be expressed, and the right to express them is of
little value if they may not be communicated to those immediately concerned. It has been recognized that the dissemination of information concerning the facts of a labor dispute must be regarded as
within that area of free discussion guaranteed by the Constitution,
Thornhill v. Alabama, 310 U.S. 88 (1940), and that the purpose of the
privilege to speak freely is to enable others to make an informed
judgment as to issues which concern them, NLRB v. Federbush Co.,
121 F.2d 954 (2d Cir. 1941). The constitutional right of free speech
carries with it freedom of choice as to the mode of expression that
will be employed, and embraces every form and manner of dissemination of ideas that appear best fitted to bring such views and ideas to
the attention of those most concerned with them, Schneider v. State,
308 U.S. 147 (1939). It would seem, therefore, that the employees'
distribution of literature and solicitation of members in Gate must be
given effect as an incident of free speech. As stated in Schneider,
"pamphlets have proved most effective instruments in the dissemination of opinion." Id. at 164. It is clear that the most effective method
of bringing the pamphlets in Gale to the notice of individuals was to
distribute them to employees at the plant, the place uniquely appropriate and almost solely available to them for this purpose. See Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803 (1945); NLRB v.
United Aircraft Corp., 324 F.2d 128, 129 (1963).
NEBRASKA LAW REVIEW-VOL. 44, No. 3
necessary consequence of the constitutional right of free speech. 1
These decisions were simply based on the Court's established
principle that, where the peaceful enjoyment of a freedom which
the Constitution guarantees is made contingent upon the uncontrolled will of another, it is an unconstitutional
censorship or prior
12
restraint upon the enjoyment of that freedom.
In deciding whether a union may contract away an employee's constitutional right of free speech, the interest of the union
in self-perpetuation and its obligation to represent the employees
in negotiations at the bargaining table must be balanced against
the importance of the employee's right to express himself.
With respect to the perpetuation of the union, it is clear that
a prohibition of speech as required by the contract provisions in
Gale would be most beneficial to the contracting union. The
effect of these restrictive contractual provisions would go far to
insulate the certified union from direct dissent and to preserve its
position as the sole bargaining representative. Similar union
security devices, such as union shops, 13 agency shops,'14 checkoffs, 15
11 Staub v. City of Baxley, 355 U.S. 313 (1958); Thomas v. Collins, 323
U.S. 516 (1945).
12 Kunz v. New York, 340 U.S. 290 (1951); Niemotko v. Maryland, 340
U.S. 268 (1951); Largent v. Texas, 318 U.S. 418 (1943); Jones v. Opelika,
316 U.S. 584 (1942); Cantwell v. Connecticut, 310 U.S. 296 (1940);
Schneider v. State, 308 U.S. 147 (1939); Hague v. CIO, 307 U.S. 496
(1939); Lovell v. City of Griffin, 303 U.S. 444 (1938).
13 See Railway Employes' Dep't v. Hanson, 351 U.S. 225 (1956).
In this
case it was argued that the union shop forced men into ideological and
political associations which violated their rights to freedom of conscience, association, and thought protected by the federal constitution.
In rejecting this argument, the Court said that there was no more
infringement than there would be in the case of a lawyer who is
required by state law to be a member of an integrated bar. The Court
went on to say that Congress endeavored to safeguard against the
possibility of an impairment of the freedom of expression by making
it explicit in the act that no conditions to membership may be imposed
except periodic dues, initiation fees, and other assessments. See also
Blackstone Mills, Inc., 98 N.L.R.B. 410 (1952).
14 See NLRB v. General Motors Corp., 373 U.S. 734 (1963). The Court observed that the agency shop is practically equivalent to the union shop,
since the only membership obligations enforceable under a union shop
contract are those relating to payment of periodic dues and fees. See
Local 1625, Retail Clerks Int'l Ass'n v. Schermerhorn, 373 U.S. 746
(1963); Holyoke Cinema Shops, Inc., 139 N.L.R.B. 1321 (1962); Public
Serv. Co., 89 N.L.R.B. 418 (1950).
15 See United States Gypsum Co., 94 N.L.R.B. 112 (1951).
CASENOTES
and maintenance of membership clauses"; have been upheld.
However, clauses calling for closed shops 17 or preferential hiring
arrangements'
have been declared to be illegal and void as
inimical to the public interest.
The danger inherent in the closed shop is similar to that in
allowing prohibitions against union solicitation. If the union is in
a position to secure all jobs to its members or dismiss or silence
a worker who is dissatisfied with the union, there is very little
chance that the union can be unseated from its position as bargaining representative.' 9 In this seat, the union has a monopoly
16 See American Feed Co., 134 N.L.R.B. 481 (1961); Pressed Steel Car Co.,
89 N.L.R.B. 276 (1950).
It has been held, however, that maintenance of membership clauses
included in an agreement concluded with a company-favored union at
a time when a question of representation existed was invalid and that
the discharge of employees who refused to maintain membership in
the contracting union was discriminatory. Tappan Stove Co., 66
N.L.R.B. 759 (1946). In addition, the Labor Management Reporting
and Disclosure Act requires express authorization by the individual
employee before his name may be added to the checkoff. 73 Stat. 538
(1959), 29 U.S.C. § 186(c) (4) (Supp. IV 1959). It would seem that
the same rationale may be applicable in Gate.
17 The mere execution of a closed shop is, in itself, violative of the right
guaranteed employees to be free to engage in or refrain from engaging
in collective bargaining activities, except as permitted under § 8 (a) (3)
of the act. NLRB v. McCloskey & Co., 255 F.2d 68 (3d Cir. 1957);
Local 542, Int'l Union of Operating Eng'rs, 141 N.L.R.B. 53 (1963);
Jandel Furs, 100 N.L.R.B. 1390 (1952); Monolith Portland Cement Co.,
94 N.L.R.B. 1358 (1951); Charles E. Hires Co., 85 N.L.R.B. 1208 (1949).
18 A union security provision which requires that union members be
given preference in hiring is unlawful. NLRB v. E. F. Shuck Constr.
Co., 243 F.2d 519 (9th Cir. 1957); NLRB v. Alaska S.S. Co., 211 F.2d
357 (9th Cir. 1954); Combined Century Theatres, Inc., 123 N.L.R.B.
1759 (1959); County Elec. Co., 116 N.L.R.B. 1080 (1956); American
President Lines, Ltd., 101 N.L.R.B. 1417 (1952).
19 To bring about a new election for a bargaining representative, a petition must be filed with the NLRB either by the employees, pursuant
to § 9(c) (1) (A) of the act, or by another union, pursuant to § 9(c)
(1) (B). If the petition is filed under (A) "by an employee or group
of employees or any individual or labor organization acting in their
behalf alleging that a substantial number of employees (i) wish to be
represented for collective bargaining," the Board investigates it and,
if there is reasonable cause to believe that a question of representation
exists, a hearing and ultimately an election will be directed. (Emphasis
added.) However, under the agreement in Gale, no question of representation could arise, since the employees are virtually precluded
from organizing sufficiently to be able to show reasonable cause that
a question of representation exists.
In the interest of stability of employer-union relations, it is generally held that, where there is a valid existing contract for a period of
NEBRASKA LAW REVIEW-VOL. 44, No. 3
control over the job market, as well as control over the individual's
free thought and action. Any policy which permits such control
to be placed in the hands of private persons or groups, whether
unions or others, tends to stifle the initiative of those who have
a right to participate in the economic life of union-management
relations.
As to the authority of the union to negotiate on behalf of its
employees, it has whatever power is necessary to fully perform
its functions. 20 The union is authorized to make contracts and
agreements which are binding upon all employees in the bargaining unit 2' and to modify such agreements, 22 but only for the
limited purpose of securing for them fair and just compensation
and good working conditions. 2 3 The primary purpose in the organization of labor unions and kindred groups is to protect their
individual members and to secure for them a fair and just remuneration for their labor and favorable conditions under which
not longer than three years, the Board will not conduct an election
until the contract is nearing its expiration date.
See General Cable
Corp., 139 N.L.R.B. 1123 (1962). However, this contract bar doctrine
does not apply where the existing contract contains an illegal union
security clause. See McLeod v. Local 476, United Bhd. of Indus.
Workers, 288 F.2d 198, 199 (2d Cir. 1961). Furthermore, the Board
may apply or waive the contract bar doctrine in its discretion, as the
facts of the case may demand, in the interest of fairness in collective
bargaining. See Local 1545, United Bhd. of Carpenters v. Vincent, 286
F.2d 127 (2d Cir. 1960); NLRB v. Grace Co., 184 F.2d 126 (8th Cir.
20
21
22
1950).
NLRB v. Draper Corp., 145 F.2d 199
(4th Cir. 1944); Hamer v.
Nashawena Mills, Inc., 315 Mass. 160, 52 N.E.2d 22 (1943).
Elgin, J. & E. Ry. v. Burley, 325 U.S. 711 (1945); National Licorice Co.
v. NLRB, 309 U.S. 350 (1940); Brisbin v. Lodge 335, Bhd. of Ry. Clerks,
134 Neb. 517, 279 N.W. 277 (1938).
Gaskill v. Roth, 151 F.2d 366 (8th Cir. 1945), cert. denied, 327 U.S. 798
(1945).
23
The National Labor Relations Act, 61 Stat. 143 (1947), 29 U.S.C. § 159
(1958), states that the elected bargaining representatives "shall be the
exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours
of employment, or other conditions of employment ....
"
(Emphasis
added.)
It has been held that a labor union has no right to bind its members individually to serve for a definite period, or to surrender what
may be generalized as "personal rights." Braddom v. Three Point Coal
Corp., 288 Ky. 734, 157 S.W.2d 349 (1941); Piercy v. Louisville & N. Ry.,
198 Ky. 477, 248 S.W. 1042 (1923). See also Mitchell v. International
Ass'n of Machinists, 196 Cal. App. 2d 796, 16 Cal. Rptr. 813 (Dist. Ct.
App. 1961); The Henry S. Grove, 22 F.2d 444, 447 (D. Md. 1927).
CASENOTES
to perform it. The problem of the authority of a union in negotiation was considered by the United States Supreme Court in
Ford Motor Co. v. Huffman, where Mr. Justice Burton stated:
Any authority to negotiate derives its principal strength from a
delegation to the negotiators of a discretion to make such concessions and accept such advantages as, in the light ef all relevant
considerations, they believe will best serve the interests of the
parties represented. A major responsibility of negotiators is to
weigh the24 relative advantages and disadvantages of differing
proposals.
Mr. Justice Burton went on to say that "the bargaining representative, whoever it may be, is responsible to, and owes complete loyalty to, the interests of all whom it represents. '25 In the
instant controversy, it is apparent that the union is serving its
own interests at the expense of the very body of men it purports
to represent. It is inconceivable that the law could tolerate such
a misrepresentation.
It is clear, therefore, that a union should not be allowed to
bargain away an employee's right of free speech. An examination
of the problem reveals two arguments in support of the proposition that a labor organization does not have the authority to do
so: (1) a union, possessing powers comparable to those of a legislature, does not have the power to restrict the constitutional
right of free speech; and (2) neither the NLRB nor the courts
may constitutionally enforce such agreements.
I.
THE UNION-LEGISLATURE ANALOGY
It has been said that there is a very close parallel between
governmental bodies and labor unions.26 One commentator has
27
referred to labor unions as "private industrial governments."
This appears to be a proper analogy in view of the many similarities between the two.28 Both require that representatives be
24
25
26
27
28
345 U.S. 330, 337-38 (1953).
Id. at 338.
Wirtz, supra note 6, at 446.
Affeldt, The Right of Association and Labor Law, 7 VML. L. REV. 27,
71 (1961).
See Affeldt, supra note 27; Friedmann, Corporate Power, Government
by Private Groups, and the Law, 57 COLmV. L. Rav. 155 (1957). See
generally Berle, Constitutional Limitations on Corporate ActivityProtection of PersonalRights From Invasion Through Economic Power,
100 U. PA. L. Rav. 933 (1952). For a discussion of the limitations on
this analogy see Wellington, The Constitution, the Labor Union, and
NEBRASKA LAW REVIEW-VOL. 44, No. 3
elected by a majority vote of the constituents and that all persons
in the particular unit are bound by this majority vote. 29 Unions
operate under a constitution and bylaws, assessing and levying
taxes (dues) much the same as governmental bodies. The legislative process of these "private industrial governments" takes the
form of collective bargaining with the end product-the collec3°
than a
tive bargaining agreement-more of a statute or code
31
As Mr. Justice Douglas stated in United Steeltypical contract.
workers of America v. Warrier & Gulf Nay. Co., 32 the collective
agreement "calls into being a new common law ....
.
This characterization of a union is supported by the United
States Supreme Court in the landmark case of Steele v. Louisville
& N.R.R., where Mr. Chief Justice Stone stated that "Congress
has seen fit to clothe the bargaining representative with powers
comparable to those possessed by a legislative body both to create
and restrict the rights of those whom it represents . . . -33 He
"Governmental Action," 70 YALE L.J. 345, 366-74 (1961); Wellington,
Union Democracy and Fair Representation: Federal Responsibility in
a Federal System, 67 YALE L.J. 1327, 1339-43 (1958).
29
30
61 Stat. 143 (1947), 29 U.S.C. § 159(a) provides: "Representatives
designated or selected for the purposes of collective bargaining by the
majority of the employees in a unit appropriate for such purposes,
shall be the exclusive representatives of all the employees in such
unit .... "
"The 'seniority clause' establishes a law of job rights which parallels
significantly the law of property rights which the courts and legislatures have evolved. The 'grievance clause' provides complete administrative and adjudicative procedures for handling any disputes which
arise during the contract term. The usual provision that 'no employee
will be discharged without just cause as determined in the grievance
process' is not basically different from the 'due process of law' protections accorded in public law. The pension and welfare provisions in
these agreements bear obvious relationship to the Social Security laws.
There is frequently included a 'union shop' provision which has the
effect of making membership in the union, like citizenship in a nation,
a compulsory condition of remaining in the community.
"The point is not simply that union organization and functioning
offers parallels with that of public government and covers similar subject matter. Even more significant is the fact that there is building
up around many unions that whole set of allegiances, dependencies
and loyalties which are the attributes of government and the fabric
of sovereignty." Wirtz, supra note 6, at 448.
31 See Chamberlain, Collective Bargaining and the Concept of Contract,
48 COLUM. L. REV. 829 (1948).
32
33
363 U.S. 574, 579 (1960).
323 U.S. 192, 202 (1944). See also Conley v. Gibson, 355 U.S. 41, 45-46
(1957); Bhd. of R.R. Trainmen v. Howard, 343 U.S. 768, 773-74 (1951).
CASENOTES
also said that a legislature's power to infringe upon the rights of
those for whom it legislates is subject to constitutional limitations
in that it is "under an affirmative constitutional duty equally
to protect those rights" 34 and that the statutory representative
has at least as exacting a duty.
This similarity between the legislative function and that of
the statutory bargaining representative in negotiating a labor
agreement would logically dictate the same approach wherever
questions arise as to the validity of negotiated labor agreements
or of ordinances or statutes. Since a legislature is without power
to prohibit the constitutional guaranty of freedom of speech,35
so that statutes and ordinances in violation of the guaranty are
null and void, 36 it should follow that a bargaining agent clothed
with comparable powers and acting by authority of a statute
7
would be bound by the same limitations.
Thus, the power of the union to curtail an individual's freedom for the :purpose of protecting the status of the union and
the integrity of the collective agreement is not absolute.38 For
example, union and management cannot establish rules which
create arbitrary or invidious distinctions, 39 nor can they agree
34
323 U.S. at 198.
35 See cases cited note 12 supra.
36 See cases cited note 11 supra.
37 It has even been held that the right of free speech, being a fundamental first amendment right,' cannot lawfully be infringed, even
momentarily, by individuals, 'any more than by the state itself, and
least of all can it be breached by corporations and unincorporated
associations which function only by the grace of the state.- Spayd v.
Lodge 665, Bhd. of R.R. Trainmen, 270 Pa. 67, 113 Atl. 70 (1921).
38 See generally Christensen, Free Speech, Propagandaand the National
Labor Relations Act, 38 N.Y.U.L. REv. 243 (1963); Cox, Rights Under
a Labor Agreement, 69 HAav. L. REV. 601 (1956); Hanslowe, The Collective Agreement and the Duty of Fair Representation, 14 LAB. L.J.
1052 (1963); Summers, Individual Rights in Collective Agreements: A
PreliminaryAnalysis, 9 BumtALo L. REV. 239 (1960); Comment, Unions'
Duty of Fair Representation: Does It Exist and Who Should Protect It?, 9 VUL. L. REv. 306 (1964).
For a comparison of individual rights in the collective bargaining
process in the United States and other countries see Laskin, Collective
Bargaining and Individual Rights, 6 CAN. B.J. 278 (1963); Summers,
Freedom of Association and Compulsory Unionism in Sweden and the
United States, 112 U. PA. L. REV. 647 (1964); Summers, Collective
Power and Individual Rights in the Collective Agreement-A Comparison of Swedish and American Law, 72 YALE L.J. 421 (1963).
39 Steele v. Louisville -& N.R.R., 323 U.S. 192 (1944).
See also Syres v.
Local 23, Oil Workers Int'l Union, 223 F.2d 739 (1955), rev'd per
NEBRASKA LAW REVIEW-VOL. 44, No. 3
that the law of the plant shall be applied to that end.40 In
addition, closed shops have been declared to be illegal, 4 1 the collective parties cannot agree that employment shall be conditioned
on obedience to union rules, 42 and the bargaining agent must
represent all employees with no discrimination between union
43
and nonunion workers.
At least one writer intimates that a person, by joining a
labor organization, surrenders his constitutional rights to these
"private industrial governments," but this seems to be based on
the erroneous assumption that unions exist for the sole purpose of
enhancing the status and respect of the workers 44 and fails to
take into consideration the person who is not a union member but
who is in the bargaining unit and thus bound by the collective
bargaining agreement negotiated by it. Such a contention would
appear to be invalid in light of Mr. Justice Murphy's concurring
opinion in the Steele case, where he stated:
Congress ...
has conferred upon the union ...
the power to
represent the entire craft or class in all collective bargaining matters. While such a union is essentially a private organization, its
power to represent and bind all members of a class or craft is
derived solely from Congress. The Act contains no language
which directs the manner in which the bargaining representative
shall perform its duties. But it cannot be assumed that Congress
meant to authorize the representative to act so as to ignore the
rights guaranteed by the Constitution. Otherwise the Act would
bear the stigma of unconstitutionality under the Fifth Amendment
in this respect. For that reason I am willing to read the statute
as not permitting or allowing any action by the bargaining representative in the exercise of its delegated powers which would in
effect violate the constitutional rights of individuals. 45
40
41
42
43
44
45
curiam, 350 U.S. 892 (1955). See generally Cox, The Duty of Fair
Representation, 2 ViL. L. REv. 151 (1957).
Conley v. Gibson, 355 U.S. 41 (1957).
See note 17 supra.
Radio Officers' Union v. NLRB, 347 U.S. 17 (1964).
In Wallace Corp. v. NLRB, 323 U.S. 248, 255 (1944), Mr. Justice Black
stated: "The duties of a bargaining agent selected under the terms of
the Act extend beyond the mere representation of the interests of its
own group members. By its selection as bargaining representative, it
has become the agent of all the employees, charged with the responsibility of representing their interest fairly and impartially." See
Radio Officers' Union v. NLRB, supra note 42; Local 801, Int'l Union
of Elec. Workers v. NLRB, 307 F.2d 679 (D.C. Cir. 1962); Hughes Tool
Co. v. NLRB, 147 F.2d 69, 74 (5th Cir. 1945).
Affeldt, supra note 27.
Steele v. Louisville & N.R.R., 323 U.S. 192, 208 (1944). (Emphasis
added.) Cf. J. I. Chase Co. v. NLRB, 321 U.S. 332, 335 (1944).
CASENOTES
The facts of the Steele case involved racial discrimination,
but the rationale of the decision is not restricted to this.46 It is
clear, therefore, that a union could no more restrict an employee's
constitutional right of free speech by "bargaining" it away than
a legislature could do so by "enacting" it away.
II. CONSTITUTIONAL LIMITATIONS ON JUDICIAL
ENFORCEMENT
Even beyond the question of whether a union may negotiate
collective bargaining agreements which deprive employees of their
right of free speech contrary to the guaranty of the federal
constitution, the question arises whether the NLRB or the federal courts may recognize or enforce such agreements.
It is clear that the enforcement of the collective agreement in
Gale would violate the employee's right of free speech. It would
seem to follow from Mr. Justice Murphy's concurring opinion in
Steele that neither the NLRB nor the courts can do anything
which will further an exercise of power by a statutory bargaining
representative which violates these constitutional rights.
It has been suggested that the right of free speech in organizational activities is protected by the Constitution against governmental infringement but not employer or union action. 47 However, it was pointed out by Mr. Chief Justice Vinson in Hurd v.
Hodge that
the power of the federal courts to enforce the terms of private
agreements is at all times exercised subject to the restrictions and
limitations of the public policy of the United States as manifested
in the Constitution, treaties, federal statutes, and applicable legal
precedents. Where the enforcement of private agreements would
be violative of that policy, it is the obligation
of the courts to
refrain from such exertions of judicial power.48
The collective bargaining agreement in Gale poses problems
analogous in many respects to those in Hurd, which was con46
See Wellington, Union Democracy and Fair Representation: Federal
-Responsibility in a Federal System, supra note 28; Note, 65 HARv. L.
REv. 490 (1952).
See NLRB v. Edward G. Budd MVfg. Co., 169 F.2d 571, 577 (8th Cir.
1948).
48 334 U.S. 24, 34-35 (1948).
(Emphasis added.) Hurd is the federal
companion case to Shelley v. Kraemer, 334 U.S. 1 (1948). The Court
recognized that it was not consistent with the public policy of the
United States to permit federal courts to abuse powers to compel action
47
denied the state courts where such state action has been held to be
violative of the guaranty of equal protection of the laws.
NEBRASKA LAW REVIEW-VOL. 44, No. 3
cerned with covenants incorporated in private conveyances of
real estate forbidding the rental, lease, sale, or conveyance of the
land to any Negro. The Court held that enforcement of these
private agreements was prohibited as violative of public policy.
Prior to Hurd, the Court, in Buchanan v. Warley,49 had declared unconstitutional racial restrictive ordinances which had
been adopted in a number of Southern cities. The response to
Warley was the racial restrictive agreement which set the stage
for the Hurd decision.
The same pattern can be seen in the relationship between
free speech and collective bargaining agreements. In Staub v.
City of Baxley 50 and Thomas v. Collins,51 the Court held that the
statutes and ordinances involved placed an unconstitutional restraint on freedom of speech. Here, the next step in the analogical
process is the Gale case, which poses the problem of free speech
in relation to private agreements in the same manner as Hurd
posed the problem of segregation in relation to private agreements.
Hurd held that there is no authority in the courts to exercise
functions expressly banned by the Constitution. The same rationale should restrain the courts from enforcing such prohibitions contained in collective bargaining agreements. 52
III.
CONCLUSION
The court in Gale concentrated on whether the company
had committed an unfair labor practice. Two other issues should
have been considered, namely, whether the union had committed
an unfair labor practice, and more fundamentally, whether the
union possessed power to bargain away an employee's constitutionally guaranteed right of free speech.
It could well have been found that the contract in question
was an arbitrary interference with the employees' freedom of
speech and a palpable abuse of power for the purpose of benefitting those who imposed the restraint. Such action arguably
49 245 U.S. 60 (1917).
50 355 U.S. 313 (1958).
51 323 U.S. 516 (1945).
52
In NLRB v. Pacific Am. Shipowner's Ass'n, 218 F.2d 913, 917 n.3 (9th
Cir. 1955), it was suggested that the National Labor Relations Board
and the courts may not be able to enforce such agreements as a limitation upon the proviso of § 8(b) (1) (A) of the National Labor Relations Act.
CASENOTES
657
constituted an unfair labor practice even if the union had the
power to carry it out.
The union should have been held to lack such power for two
reasons: (1) unions should be held subject to substantially the
same constitutional limitations imposed upon legislatures, which
unions closely resemble in form and function; and (2) neither
the courts nor the NLRB may constitutionally enforce private
restraints upon the freedom of speech.
Donald H. Bowman 66